Understanding the Equality Act: information for disabled students

This Disability Rights UK factsheet has information about the Equality Act which came into force in October 2010. It is intended for disabled students and explains how education providers and employers have to make reasonable adjustments, provide support and make things accessible.

If you are from Northern Ireland, the Equality Act does not apply as education is instead covered by the Special Educational Needs and Disability Order (SENDO). For more information on SENDO, please contact the Equality Commission for Northern Ireland.

1. What are equality and human rights

It’s important to know your rights and how the law protects you from discrimination as a disabled person. Education providers and employers have particular responsibilities.

Human rights

'Human rights' are the rights and freedoms that belong to every person in the world. These are based on principles such as dignity, fairness, equality, respect and autonomy. The 1998 Human Rights Act brought human rights into UK law. One of these is:

‘Everybody has the right to an effective education’

In 2009 the UK ratified the UN Convention on the rights of people with disabilities. This means that the UK government agreed that they would work to:

‘Ensure the education system at all levels is inclusive and geared towards supporting disabled people to achieve their full potential and participate equally in society’

Disability equality

Disability discrimination laws developed in the 1990s when it became more widely recognised that disabled people were facing discrimination. The Disability Discrimination Act (DDA) originally came in force in 1995 and it was significantly amended and extended over the following 15 years, gradually bringing more protection for disabled students.

The Equality Act took over from the DDA in 2010. As well as supporting the rights of disabled students by giving greater legal protection against discrimination, it emphasises the legal duty on education providers, employers and service providers to make reasonable adjustments so disabled people can take part in education, use services and work.

2. Who is covered by the Equality Act?

The Equality Act came into force in October 2010, bringing together different laws that cover discrimination into one.

Under the Act, disabled people should be treated equally and protection from discrimination applies in many situations such as education, employment, exercise of public functions, goods, services, facilities and transport.

It's against the law to be treated unfairly at work because of your age. Some jobs require work experience, but you should generally be judged on your skills and expertise, rather than how many years you've worked.

Race

Race refers to your colour, and/or nationality, and/or ethnic or national origin. Wherever you were born, wherever your parents came from, whatever your skin colour, you have the right to be treated equally.

Sex

Jobs, training schemes and apprenticeships must be open equally to women and men. Pay and benefits must also be offered on the same basis.

Sexual orientation

You shouldn't be disadvantaged because you're gay, lesbian, bisexual or straight. It's against the law for a college or employer to treat you unfairly because of your sexuality.

Religion and belief

Your religion or belief shouldn't be used against you.

Gender reassignment

You have the right to be treated equally if you change from one gender to another.

Pregnancy and maternity

Pregnant women and women on maternity leave should not be singled out for redundancy or treated unfairly at work.

Marriage and Civil Partnership

Employees who are married and those who are in a civil partnership must be treated the same. Although marriage and civil partnership is listed in the Act as a protected characteristic, it does not provide protection against discrimination because of marriage and civil partnerships in the further and higher institution provisions.

When will I be covered?

Education

Publicly funded education providers have a duty under the Equality Act not to discriminate against potential, current or former students. An education provider could be a university, college, Local Authority or a school which runs further education courses. All aspects of studying are covered including:

course admissions

the provision of education

access to any benefit, facility or service

exclusions

Local authorities have a duty not to discriminate against potential, current and former students when helping the person access a course at college or university.

Private education and training providers also have duties under the Act as service providers.

Employment

Employers have a duty not to discriminate against job applicants or employees. This includes apprentices and all paid staff. All areas of employment are covered including:

recruitment and advertising

employment contracts

pay and benefits

promotion and training

dismissal and redundancy

3. Do I have a disability?

To be protected under the Equality Act, you must meet the legal definition. Disability is defined as:

‘a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities’

The definition is designed to be as broad as possible and there are a wide variety of conditions and impairments that will be covered.

Some impairments automatically meet the definition from the point of diagnosis. These are cancer, HIV and Multiple Sclerosis. People registered as blind or partially sighted are also automatically regarded as disabled under the Act.

If you meet this definition you will be protected if someone discriminates against you because of your impairment.

There is no need for you to have a medically diagnosed cause for your impairment; what matters is the effect of the impairment on you.

To check if you are disabled under the terms of the Act ask yourself the following questions:

3.1 Do I have a physical or mental impairment?

Physical or mental impairment can include:

physical impairments, such as mobility difficulties

sensory impairments such as those affecting hearing or sight

learning difficulties, including people with specific learning difficulties such as dyslexia and dyspraxia

genetic and progressive conditions, if the condition affects your ability to carry out normal day-to-day activities such as motor neurone disease, muscular dystrophy

conditions which are characterised by a number of cumulative effects such as pain or fatigue

hidden impairments such as asthma or diabetes, if these have an effect on your day-to-day activities

past history of impairment - this applies if you are no longer disabled, but met the definition in the past.

Does my impairment have a substantial adverse effect?

A substantial adverse effect is something that is more than minor or trivial and goes beyond the normal differences in ability which may exist between people.

What if I have a severe disfigurement?

If you have a severe disfigurement, it will likely meet the definition of disability. It is not necessary to prove that the disfigurement has a substantial adverse effect on your ability to carry out normal day-to-day activities.

3.2 Does my impairment have a long-term effect?

A long-term effect is one:

which has lasted at least 12 months; or

where the total period for which it lasts is likely to be at least 12 months; or

which is likely to last for the rest of your life.

Some effects are not long-term and would therefore not be included, for example loss of mobility due to a broken leg which is likely to heal within 12 months.

What if the effects come and go over a period of time?

Your impairment is treated as long-term if it previously had a substantial adverse effect and is likely to recur.

For example, a person with rheumatoid arthritis, which has had a substantial and adverse effect after the first occurrence may have a period of remission (it improves for a time). If the substantial effects are likely to happen again they are to be treated as if they are continuing. If the arthritis remains and there is likely to be a recurrence 12 months or more later, this would be as a long-term effect. Examples of other conditions which can recur beyond 12 months, or where the effect can be sporadic are epilepsy or mental health impairments such as depression, schizophrenia.

What about people who have recovered?

People who have had a physical or mental impairment within the definition are protected from discrimination even if they recover. So, if you are discriminated against because you used to have a disability, you could still be protected under the law.

3.3 Does my impairment affect normal day-to-day activities?

The Act recognises that ‘normal day-to-day activities’ vary from person to person and so it does not define these. However they are generally regarded as things that most people have to do every day, whatever their job or occupation. For example; shopping, getting washed and dress, preparing and eating food, household tasks, walking, talking, hearing, reading, communicating and social interaction. It can also include general study related activities such as using a computer, preparing written work, keeping to a timetable.

4. What is discrimination?

Discrimination is when an education provider or employer treats you unfairly and puts you at a disadvantage when compared with non-disabled people. This could be because someone is purposefully discriminating against you. Or it could be because an education provider, exam board or employer works in a way that unintentionally puts you at a disadvantage.

Direct discrimination

This is when someone is treated less favourably than someone else because they are disabled.

Example: A blind woman who meets entry requirements for an IT course is refused because the education provider wrongly assumes that blind people cannot use computers.

Discrimination by perception

This gives legal protection for people who are mistakenly perceived to be disabled.

Example: A candidate is not offered a place on a university course because the university suspects they have a mental health condition (even though they do not) and they are concerned they will not be able to complete.

Discrimination by association

Non-disabled people are also protected from discrimination by association to a disabled person. This might be a friend, partner, fellow students or relative. This is important to remember if you are a carer for a disabled person.

Example: A training provider rejects a candidate because they are concerned the candidate’s caring responsibilities (for a disabled partner) will impact on their ability to complete an Apprenticeship.

Indirect discrimination

Indirect discrimination is when there is a practice, policy or rule which applies to everyone in the same way but has a worse effect on some people than others.

Example: A university has a policy that requires all students to register for units on an online system. The system is however not accessible to assistive technology. This could be seen as indirect discrimination against a student with a visual impairment using such technology.

In some cases the policy or practice may be justified. In the above example, the university’s decision to introduce the online system might be justified if it is more efficient and saves on staff and student time. However the university should take steps to ensure that the online system is accessible and provide reasonable adjustments for students who need them.

Discrimination arising from a disability

This is when a disabled person experiences discrimination because of something connected with their disability.

Example: An employee with a medical condition needs to take more time off work than their colleagues to attend medical appointments. The employer must not treat that person unfavourably because they are off work.

Example: A disabled student takes a number of days off from their college course due to anxiety and depression. The college notes the absence and takes action to terminate his studies as he has taken off more days than allowed in a term. The college should be recording disability related absences separately. The action to exclude the student is due to disability related absence so this would be discrimination arising from disability.

Harassment should be connected to a protected characteristic, like disability, but you do not need to be a disabled person yourself. You may be associated with a disabled person, or people may mistakenly believe you have an impairment.

Victimisation

Victimisation means being treated less favourably because you have previously made an allegation or complaint about discrimination to employer or education provider.

5. Do I have a right to the support I need?

Failure to make reasonable adjustments is another type of discrimination. The duty requires education providers to take steps to ensure that disabled students can fully participate in education and other benefits, facilities and services provided for students. It covers all arrangements, policies, procedures and activities.

What are adjustments?

There are three elements to the reasonable adjustments duty. Adjustments can:

be changes to policies and procedures

be changes to buildings to make them physically accessible

mean provision of equipment and human support.

The aim is to prevent disabled people being disadvantaged compared to non-disabled people. Adjustments can include:

Putting in place arrangements for time off and keeping up-to-date with course work for a student whose medical condition leads to frequent hospital admissions.

Ensuring students using hearing aids have access to lecture theatres with hearing loops. Or ensuring that students with dyslexia have access to specialist software on the college’s computers.

Providing support workers such as readers for students with visual impairments or note-takers for students whose impairment makes it difficult for them to take notes in classes and lectures.

What is reasonable?

The Equality Act does not say what is ‘reasonable’. What is reasonable in one set of circumstances may not be reasonable in another.

There is no justification for failing to make a reasonable adjustment. The following factors are likely to be taken into account when considering whether adjustments are reasonable:

The effectiveness of making the adjustment. Will it be effective in overcoming the substantial disadvantage suffered by the disabled student?

The practicality of the adjustment

The financial resources of the education provider or employer

The cost of making the adjustment.

The availability of grants, loans and other assistance to disabled students, such as DSAs, Access to Work or charitable trusts

The extent to which aids and services will be provided to disabled students from other sources

Health and safety requirement

The relevant interests of other students – for example if the adjustment results in significant disadvantage for other students.

Accessible formats

The Equality Act specifically identifies providing information in an accessible format as a reasonable adjustment. For example Braille, Large Print, Easy Read or using coloured paper.

Competence standards

Reasonable adjustments do not have to be made if they will affect a competence standard. These are academic, medical, or other standards applied to determine whether a student has reached a particular level of competence or ability

Competence standards may apply when you are;

Applying for a course or job

Taking an exam or completing an assignment to gain a qualification.

Registering with a trade organisation, such as becoming a registered Nurse or Social Worker.

Competence standards only apply if they determine the level of ability required in the specific circumstances.

Example: In a law exam you may be required to demonstrate a particular level of knowledge of law, However completing the exam within a specific time frame is unlikely to be a competence standard if speed is not a relevant factor.

General qualifications and reasonable adjustments

With general qualifications such as A-Levels, the regulator (for example Ofqual) might determine that part of the qualification should not be subject to a reasonable adjustment. This is designed to protect the ‘integrity of the qualification.’ In doing this the regulator must consult with organisations representing disabled people and publish their reasoning.

Anticipatory duty

For education and service providers, the duty to make reasonable adjustments is a duty owed to disabled people generally, regardless of whether the provider knows that a particular student is disabled or whether they have any disabled students at all. This means that they must plan ahead for reasonable adjustments and not wait for you to approach them before considering how to meet the duty. They must anticipate the type of barriers that students with various impairments may face. They must also anticipate the adjustments they can make to remove these barriers. The anticipatory duty might include altering physical features of a building to ensure access, or ensuring that services, such as BSL sign language interpreters can be arranged at short notice. Employers do not have an anticipatory duty.

Adjustments you need

Education providers and employers can only make adjustments if they would be ‘reasonably expected to know’ you have a disability. This means that they should take reasonable steps to find out if you are disabled.

Confidentiality

Information about your impairment is sensitive personal data and you have a right for it to be kept confidential. People who know about your impairment should ask you before they pass this information on to someone else. They should not pass it on without first getting your permission. However, not giving your permission to pass on information might limit the adjustments that can be put in place.

6. What can I do about discrimination?

Don't suffer in silence. You have the right to be treated fairly and anyone who discriminates against you is breaking the law. At every stage, keep a written record of what happened and what was said at any meetings. Keep copies of letters and emails.

It's usually best to start with an informal complaint. Sometimes education providers or employers don't realise there's a problem and they might be able to quickly sort things out.

Education provider

You should speak to a member of staff you trust such as your personal tutor or the disability adviser. The college or university is likely to have student support services which you can approach as they may be able to help you resolve the situation. If this does not resolve your issues you can make an internal complaint. The college or university will have a complaints procedure you can follow. This should set out the steps you need to take to make a formal complaint. You should be able to get a copy of the complaint procedure from your student handbook, the education provider’s website, the student union or from any member of staff. If you’re not satisfied with the outcomes of the complaint, you can take your complaint to an external body.

The Office of the Independent Adjudicator reviews complaints made by students on higher education courses in England and Wales. The OIA does not act as a court and does not investigate or make legal findings in the same manner as a court. It can however refer to the law and guidance on discrimination to form an opinion as to good practice and decide whether the provider has acted fairly.

The Scottish Public Services Ombudsman reviews complaints made by both further and higher education students in Scotland.

Further education students in England and Wales can take their complaint to the funding body for their course. You can find out more about who funds further education in our factsheet Funding further education for disabled students.

Employer

You should raise the issue through your line manager, or by contacting the HR or personnel department. If you're a member of a trade union, ask them for advice. If this doesn't work, the next stage is a formal complaint or raising a grievance. Ask for a copy of your employer's grievance procedure. If they don't have one – or won't give you a copy – go ahead and put your complaint in writing anyway. The employer should then arrange a meeting where you can explain why you think you've been discriminated against. They may want to investigate further before making a decision.

Support

For support in resolving issues informally, advice on using conciliation or mediation services and information about civil legal aid, please contact the Equality Advisory and Support Service (EASS). Anyone who has a discrimination or human rights related issue can contact the service. They can also accept referrals from organisations. You can find more information in our factsheet Making a complaint.

Legal action

If you are still unable to resolve your complaint, you may decide to take legal action. For cases about employment, this should be taken to an Employment Tribunal. For all other areas, the case should be taken to court (County Courts in England and Wales, and Sheriff Courts in Scotland).

Education

You must usually take your complaint to court within six months of the date when the alleged discrimination took place. If you take your case to the OIA you may be allowed longer to take your claim to court but you should seek legal advice about this first. The outcomes of a court case may include compensation for injury to feelings, an injunction (in England and Wales), or an interdict (in Scotland) to prevent further discriminatory practices by the education provider.

Employment

An Employment Tribunal is different from a court and has different powers. If you win a case at a tribunal they can make a declaration of rights, award financial compensation or a recommendation for action to put right the wrong. You must register a complaint within 3 months of the discriminatory act. You must notify the Advisory, Conciliation and Arbitration Service (Acas) of your intention to make a claim to the tribunal and they will offer you the opportunity to use their Early Conciliation Service. You get a certificate from Acas if conciliation doesn’t work which can be used to claim to the tribunal. The deadline for making a claim to the tribunal is extended by the amount of time you spend in conciliation.

You may have to pay a fee to make a claim. There is a second fee payable if the claim goes to hearing. The amount depends on the type of case and personal circumstances. People on low incomes or benefits may be able to get help to pay the fees.

You may get legal aid in the form of Legal Help e.g. advice about a discrimination case or Legal Representation e.g. an appeal to the Employment Appeal Tribunal. However you cannot get legal aid for the Employment Tribunal itself.

If you live in Scotland, civil legal aid is not available for representation in the employment tribunal. Some cases attract funding under the Scottish Legal Aid Boards ‘advice by way of representation’ scheme. If you are eligible, you will get help and advice with preparing your claim. You may also be able to get help to pay for representation at the hearing. More information is available from the Scottish Legal Aid Board.

Other advice services

Before you take legal action it is a good idea to seek some legal advice. The following organisations may be able to give you advice and support on the different parts of the Equality Act:

The EHRC website provides information on discrimination and human rights issues. It also produces guidance and Codes of Practice on the Equality Act.

Law Centres provide a free and independent professional legal service to people who live or work in their local areas.

Trades unions and staff associations can advise you on how best to resolve disputes with employers, and may be able to attend meetings with you.

ACAS aims to help employers and employees resolve disputes at work.

Disability organisations provide leaflets and website information about disabled people’s rights in a range of areas.

Access to Work can provide practical support and advice to disabled people and employers. It can give employers money towards the cost of reasonable adjustments for disabled people in the workplace.

For further information on making a complaint, read Disability Rights UK’s factsheets listed in the Useful information and publications section.

7. Positive Action in recruitment and promotion

The term ‘positive action’ refers to legal measures to counteract the effects of past discrimination and to help abolish stereotyping. Positive action can be taken to encourage disabled people to take advantage of opportunities for training or work experience schemes, or encourage them to apply for particular employment. It can only be done when disabled people have been identified as under-represented in a certain area.

Positive action may include things like introducing fair selection procedures, training programmes or targeting job advertisements at disabled people. Positive action is not the same as positive discrimination and does not involve treating disabled people more favourably when recruiting. Employers must make sure that employees are hired or promoted on merit alone. At the point when a candidate is selected, disability must not be taken into account.

8. Public Sector Equality Duty - information for providers

The Equality Act harmonises the three previous duties on disability, race and gender into one single, general Public Sector Equality Duty (PSED). This came into force in April 2011 and it requires public authorities, including colleges and universities, to:

Eliminate discrimination, harassment and victimisation.

Advance equality of opportunity.

Foster good relations.

Education providers should gather information, consult and involve stakeholders to help them begin to identify their priorities for action. They should also refer to the EHRC ‘non-statutory code’ which is an authoritative, legal interpretation of the PSED.

As well as a legal obligation, complying with the general equality duty makes good business sense. An organisation that provides services to meet the diverse needs of its users should find that it carries out its core business more efficiently. It should also result in better informed decision-making and policy development and increased satisfaction with public services.

9. Useful information and publications

For further information on the support that is available for disabled students, please contact our Disabled Students Helpline - 0330 995 0414.

Scottish Public Services Ombudsman (SPSO) is the final stage for complaints about colleges and universities, local councils, the National Health Service, housing associations and Scottish Government departments.